Karnataka High Court
Shri H Shanker Shetty vs Vijayanagara Club on 20 September, 2013
Author: Huluvadi G.Ramesh
Bench: Huluvadi G Ramesh
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 20th day of September, 2013
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Miscellaneous First Appeal 9139 / 2011 (CPC)
Between
Sri H Shanker Shetty, 53 yrs
S/o late Rajeeva Shetty
Advocate, R/o # 15, 6th Main
Byraveshwara Nagar
Bangalore Appellant
(By Sri M S Narayan, Adv.)
And
1 Vijayanagara Club
# 124, I Main, 4th Cross
II Stage Vijayanagar
Bangalore
By its Joint Secretary
2 Mr N V Ramachandra Chetty
President, Vijayanagar Club
70 yrs, R/o # 168, 18th Cross
Vijayanagar, Bangalore 40
3 Sri B N Vasudeva, 60 yrs
Vice President, Vijayanagar Club
# 65, III Main, IV Stage, IV Block
Basaveshwaranagar, Bangalore
2
4 Sri K V Venkatesh, 56 yrs
Jt. Secretary, Vijayanagar Club
R/o# 36/3, S-2, Sumeru Apartments
IV Main, RPC Layout, Bangalore
5 Sri K Devadas, 58 yrs
Hon. Treasurer, R/o # 25, I Main
8th Cross, Magadi Main Road
Prashanth Nagar, Bangalore 79
6 Sri B M Natatraj, 50 yrs
Managing Committee Member
Vijayanagar Club
R/o 60, 9th Main, IV Cross
Hoshahalli, Vijayanagar
Bangalore
7 Sri B Ganesh Kumar, 52 yrs
Managing Committee Member
Vijayanagar Club
# 120/3, IV Cross, Gandhinagar
Bangalore
8 Sri A K Krishne Gowda, 65 yrs
Managing Committee Member
Vijayanagar Club
# 2328, III Main, II Stage
Vijayanagar, Bangalore
9 Sri K P Nagesh, 50 yrs
Managing Committee Member
Vijayanagar Club
# 2928/E, I Cross, Hampi Nagar
Vijayanagar II Stage, Bangalore
3
10 Sri M Prabhakara, 65 yrs
Managing Committee Member
Vijayanagar Club
# 63, Gangavadi, 5th Cross
5th Main, RPC Layout
Vijayanagar II Stage
Bangalore
11 Dr K R Ramachandra, 64 yrs
Managing Committee Member
Vijayanagar Club
# 1365, 11th Main
Vijayanagar, Bangalore
12 Sri V B N Shinde, 70 yrs
Managing Committee Member
Vijayanagar Club
R/o # 57, 14th Main
Vijayanagar, Bangalore
13 Sri B J Sreekantaiah, 53 yrs
Managing Committee Member
Vijayanagar Club
R/o # 14, II Stage, I Block
80Ft. Road, Nagarbhavi
Bangalore
14 Sri A S Umesh Prasad, 52 yrs
Managing Committee Member
Vijayanagar Club
# 764, 17th A Main, V Block
Bhasyam Circle, Rajajinagar
Bangalore 10 Respondents
(By Goutham & Rajeshwar for C/R1;
Sri Vijaykumar Patil, Adv. For R2-15)
4
First Appeal is filed under O 43 R 1(r) of the Code of Civil
Procedure praying to set aside the order on IA 1 in OS 1848/2010 on
2.9.2011 by the XXXVII Addl. City Civil & Sessions Judge, Bangalore.
First Appeal coming on for hearing this day, the Court delivered the
following:
JUDGMENT
Appeal is by the plaintiff in OS 1848/2010 before the City Civil Judge, Bangalore aggrieved by the order passed on 2.9.2011 dismissing the application - IA 1.
It transpires the appellant was elected for the Managing Committee continuously for two terms and subsequently as Secretary to the respondent Club for the year 2007-09. At the fag end of his term as Secretary, he was removed from the said post and was also suspended as a member for a period of one year. During the pendency of the suit filed for declaration and injunction for restoration of membership, an interim application was filed which came to be allowed in part and the appellant's membership was restored. The trial judge held that it is concluded that the appellant has not in any manner conducted detrimental to the interest of the 1st respondent 5 club except differences in the working nature amongst members. The 1st respondent had convened special general body meeting to transact the business and the general body resolved to dissolve the then Managing Committee. Later, in the general body meeting, the appellant once again was elected as Secretary to the 1st respondent Club on 15.3.2009 for a period of two years. It is stated, respondents 2 to 15 have behaved in a manner detrimental to the interest of the Club and acted contrary to the rules of the Club The appellant circulated three office notes during September, 2009, December 2009 and January 2010 bringing it to the notice of the Club the illegalities perpetuated by respondents 2 to 15 and asking them to be diligent and act in conformity with the Rules and bye- laws of the Club.
According to the appellant, under the apprehension that the matter as to some of the illegalities committed by respondents 2 to 15 would be placed before the general body, they have taken a decision to issue notice and tried to pass on the blame on the appellant himself. The respondents have resorted to deal with the appellant himself without there being any 6 allegation on him with all malafides and have acted in a manner to remove him from membership as well as from the post of Secretary without complying with the principles of natural justice. It is the case of the appellant that respondents 2 to 15, in total ignorance and behind the back of the appellant, conducted a meeting on 24.2.2010 and 9.3.2010 in utter violation of R 25 (2) of the Club Rules. It is also sated that the appellant was the person elected by General Body as Secretary in the annual meeting of the Club to convene such similar meetings of the Managing Committee. Deviating from the rule, they have issued a show cause notice to the appellant to cover up their own lapses, held the meeting illegally without even affording an opportunity of hearing and terminated the appellant from the membership as well as removed the appellant from the post of Secretary of the Club. According to the appellant, virtually that power is vested in the General Body as per R 30 -1 (f) of the 1 st respondent club. On the IA filed by the plaintiff/appellant before the trial court in the suit OS 1848/2010, the trial court has passed the impugned order dismissing the said application. Hence, this appeal.
7
Heard the counsel representing the parties.
According to the counsel representing the appellant, as per the judgment of the Apex Court in the case of Payyavula Vengamma Vs Payyavula Kesanna & Ors - AIR 1953 SC 21, when proceedings adopted is obviously contrary to the principles of natural justice, the arbitraror is guilty of misconduct and that is sufficient to vitiate the award and accordingly, it is his argument that the procedure adopted by the Managing Committee in issuing notice and without giving an opportunity of hearing to the appellant is bad in law and such decision ought to have been taken by the general body in stead, respondents 2 to 15 proceeded to remove the appellant from membership as well as from the post of Secretary without there being any approval from the general body. It is also submitted, appellant was elected in the general body meeting as Secretary with full majority. However, when appellant sought to expose the illegal activities of respondents 2 to 15, to retaliate the appellant has been expelled illegally and arbitrarily abusing the procedure provided under the bye-laws. It is also the contention of the counsel, in the case of T P Daver Vs Lodge 8 Victoria, Belgaum - AIR 1963 SC 1144, it has been observed that in order to expel a member there must be strict observance of rules as to expulsion and also the jurisdiction of the civil court is limited.
Per contra, counsel representing the respondent Club submitted that notice had been issued to the appellant and on reply, decision has been taken by the committee having regard to the misconduct committed by the appellant. There is no illegality in the order or the procedure followed. Even the order passed by the trial court refusing injunction is proper. Accordingly, he prays that the appeal deserves to be dismissed. In support of his contention, counsel has relied upon the decision of this Court in the case of Ganapathi Narayan Sabhahit & Ors Vs Shivaram Narayan Bhat & Ors - 1996(3) KLJ 58 to contend that the relief sought for by way of injunction cannot be granted as it is in the nature of final relief which can be granted only after suit is tried and and rights of the parties are attracted and also it is his submission, if another six months time is granted the suit itself could be disposed of and granting of any interim order would prejudice the interest of the respondent. Counsel has also relied upon the 9 case of Dr K T Shivaiaha Vs G Puttaswamy Gowda - ILR 1993 KAR 1564 to contend that rules or bye-laws statutory are not statutory provisions but contract between different persons concerned.
In reply, appellant's counsel submitted, when such a drastic action is sought to be taken there should be imputation and articles of charges served and after following procedure, on the basis of the finding given by the inquiry authority, if there is any such illegality or irregularity, then such a thing could be placed before the disciplinary authority or committee and in the general body such a decision could have been taken. In stead, to save themselves respondents 2 to 15 have adopted tactics to penalise the appellant.
It appears what is not in dispute is, appellant was a permanent member of the 1st respondent Club. Twice he was also elected to the general body. Apart from that, he has been appointed as Secretary to the Club in a thumping majority of the Club members. It also appears there are certain irregularities sought to be brought to the notice of the general body. 10 To overcome it, it is submitted rather respondents 2 to 15 sought to expel the appellant without bringing it to the notice of the general body or without its approval or without following due procedure. Therefore, appellant sought to save himself from the removal of membership by approaching the trial court. The trial court reasoned that appellant himself is a member of some other Cubs as such, no hardship would be caused and proceeded on its own without looking into the nature of allegation made against him and the impropriety followed in the procedure.
In that view of the matter, while setting aside the order of the trial court on the IA filed, pending disposal of the suit, the membership of the appellant is restored. Thereafter, if the general body proceeds to take action against the appellant, the same be done according to law. Since the term of the appellant as Secretary is over and the Committee is said to be dissolved, any such steps taken to proceed against the appellant is without following due procedure, the matter has to be placed before the general body and thereafter, action be initiated. If any contrary decision is taken against the appellant, the appellant would press the suit or else it would be 11 subject to the result of the decision taken by the general body. If the decision taken by the general body is in favour of the appellant, it is for the appellant to withdraw the suit.
The order suspending the appellant is hereby stayed pending disposal of the suit and also subject to the decision taken by the general body. Matter be placed before the general body. Meanwhile, respondents shall not in any way, obstruct the appellant from participating in all the general body meetings as well enjoying the membership of the Club.
Appeal is allowed.
Sd/-
Judge an